Exhibit 2.1
ACQUISITION AGREEMENT
BY AND BETWEEN
LA FERN, INC. D/B/A/ LEISURE LINK INTERNATIONAL,
AS LFI,
AND
ALL OF THE HOLDERS OF LFI INTERESTS,
AS HOLDER,
AND
ONLINE VACATION CENTER HOLDINGS CORP.,
AS ONVC.
DATED AS OF OCTOBER 3, 2006.
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ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the "Agreement"), dated as of October
3,
2006, is made by ONLINE VACATION CENTER HOLDINGS CORP., a Florida
corporation
("ONVC"), LA FERN, INC. D/B/A/ LEISURE LINK INTERNATIONAL, a
Florida corporation
("LFI"), and LAWRENCE FISHKIN, a Florida resident and the owner of
all of the
ownership interests of LFI (the "Holder").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of
which
is hereby acknowledged, Holder desires to sell, and ONVC desires to
acquire, all
of the issued and outstanding ownership interests of LFI (the "LFI
Interests")
for the consideration and on the terms set forth in this Agreement
and the
parties, intending to be legally bound, hereby agree as
follows:
1. SALE AND TRANSFER OF LFI INTERESTS; CLOSING
1.1 LFI
INTERESTS.
Subject to the terms and conditions of this Agreement, at the
Closing,
Holder will sell and transfer the LFI Interests to ONVC, and ONVC
will acquire
the LFI Interests from Holder.
1.2
CONSIDERATION.
(a) The
total consideration (the "Consideration") for the LFI Interests
will
be equal to: $ 400,000
(b) The
Consideration shall be paid as follows:
$25,000 Cash by wire transfer or check; and
$375,000 Convertible Note (the "Note"), bearing interest at 6%
per annum, with principal payable at maturity of October 1,
2009
and interest payable semi-annually on April 1, 2007 and on each
April 1 and October 1 thereafter. The Note may not be prepaid
and
shall be convertible at the election of Holder prior to
maturity
into 187,500 Shares of ONVC Common Stock at a conversion price
equal to $2.00 per share.
(c) The
Consideration shall be adjusted, if necessary, as required
pursuant
to Section 3.1(d) hereof.
(d)
Further, after Closing, Holder shall be paid an amount equal to 75%
of
the total "commission overrides" actually received by LFI for
travel
originated by LFI and taken in calendar year 2006, such amount to
be
payable to Holder by corporate check within 10 days after receipt
and
reconciliation of such "commission overrides" by LFI.
1.3
CLOSING
The acquisition and sale (the "Closing") provided for in this
Agreement
will take place at the offices of Tripp Scott, P.A., 110 Southeast
6th Street,
15th Floor, Fort Lauderdale, FL 33301, at 10:00 a.m. (local time)
on October 3,
2006, or at such other time and place as the parties may agree.
1.4 ESCROW
AND CLOSING
OBLIGATIONS
Holder has indicated his acceptance of this Agreement by the
execution
and delivery in escrow to LFI of his applicable Transfer Power.
Such Transfer
Power shall be released from escrow upon payment of the
Consideration to Holder
as set forth in the Acceptance and Transfer Power and no further
action,
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consent, approval or direction shall be required of Holder in
connection
therewith. The Transfer Power shall be cancelled at the written
request of
Holder at any time after October 3, 2006 if the Consideration has
not been paid
or if this Agreement has been terminated prior to such date. At the
Closing,
ONVC will have received the Closing Deliverables as described in
Exhibit A
attached hereto, all in form and substance reasonably satisfactory
to ONVC.
1.5 TAX
MATTERS
Holder and LFI further represent and warrant that all (a) tax
returns
due to be filed on or before Closing have been accurately and
timely filed, (b)
all taxes due and payable on or before Closing have been paid, and
(c) for any
periods for which tax returns are not yet due, or for which all
taxes have not
yet been paid, LFI has accurately and properly accrued on the
books, records and
financial statements of LFI liabilities or reserves reflecting the
taxes due
from LFI for such periods, except as follows:
(1) Holder and
LFI represent and warrant that LFI has elected to file
its federal income tax returns as a "Subchapter S Corporation"
and therefore no federal or state income taxes are payable by
LFI
nor are any federal or state income tax accruals, reserve or
payments reflected on the books, records or financial
statements
of LF.
(2) Holder will
prepare and timely file "short-period" federal and
state income tax returns for the "short-period" ended as of the
date of Closing and Holder will be responsible for, and will
pay
when due, any and all taxes, interest, penalties preparation,
audit or other expenses or costs in connection therewith.
Holder
shall provide a copy of these "short-period" tax returns to
ONVC
together with the work papers and schedules utilized in their
preparation.
(3) For
clarification, all expenses incurred by LFI prior to the date
of Closing, including, but not limited to, expenses associated
with (A) the transactions contemplated by this Agreement, and
(B)
payments of compensation to employees and other service
providers, shall be paid by Holder and, to the extent so paid,
shall be expenses of LFI reflected on the "short-period' tax
returns.
(4) Neither
Holder, ONVC nor LFI shall file an amended tax return
with respect to any and all taxable periods, or portions
thereof
(including the "short-period"), ending on or before the Closing
Date, without the prior written consent of Holder, ONVC and
LFI;
except that such consents shall not be required for any
amendment
filed in connection with any requirement or finding of any
audit
by a governmental entity of the tax return to which the
amendment
relates. Holder shall indemnify ONVC and LFI for any liability,
cost or expense ONVC or LFI incurs as a result of any such
amendment filed in accordance with the terms hereof.
For purposes hereof, "taxes" shall mean all federal, state, local,
foreign and
other governmental net income, gross income, gross receipts, sales,
use, ad
valorem, transfer, franchise, profits, license, lease, service,
service use,
withholding, payroll, employment, unemployment, excise, severance,
stamp,
occupation, premium, property, windfall profits, customs, duties or
other taxes,
fees, assessments or charges of any kind whatever, together with
any interest
and any penalties, additions to tax or additional amounts with
respect thereto.
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2. REPRESENTATIONS AND WARRANTIES
2.1
REPRESENTATIONS AND WARRANTIES OF HOLDER AND LFI
Holder and LFI each hereby represents and warrants to ONVC as
follows:
(a) Ownership.
Holder is and will be on the Closing Date the record and
beneficial owners and holders of the LFI Interests, free and clear
of
any and all liens or encumbrances. Holder owns the number of the
LFI
Interests set forth on the Acceptance and Transfer Powers
attached
hereto, which represents 100% of the outstanding equity and
other
securities of LFI. There are no agreements, rights, claims or
obligations relating to the issuance, sale, or transfer of any
equity
or other securities of LFI. LFI has no subsidiaries.
(b)
Authorization. Holder is an individual. LFI is a corporation
duly
organized and in good standing under the laws of the State in which
it
was formed and is duly qualified and in good standing in each
jurisdiction in which it conducts business or owns property. Holder
and
LFI each
has full right, power and authority to execute and deliver the
Holder Documents (as defined below), to perform its obligations
therein
and to consummate all of the transactions contemplated thereby.
(c) Documents.
Holder and LFI each has, or before Closing will have,
approved the sale of the LFI Interests, this Acquisition Agreement
and
the transactions contemplated hereby, and approved, executed
and
delivered this Acquisition Agreement and certain agreements,
instruments to be executed and delivered by each of Holder and LFI
in
connection herewith (collectively, the "Holder Documents") and each
of
the Holder Documents, when executed by Holder or LFI, shall be
the
legal valid and binding obligation of each of Holder and LFI in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting
creditors'
rights heretofore or hereafter enacted to the extent
constitutionally
applicable and subject to the exercise of judicial discretion
in
appropriate cases.
(d) No
Default. Neither Holder nor LFI, nor any vendor or party in
contract
with LFI, is in violation of any provision of, or in default
under,
LFI's articles of incorporation or by-laws, or any indenture,
mortgagee, deed of trust, indebtedness, agreement, judgment,
decree,
order, statute, rule or regulation affecting the LFI Interests or
to
which LFI is a party or by which LFI or its property is subject
or
bound and further, the execution and delivery of the Holder
Documents,
the performance of the obligations therein and the consummation of
the
transactions contemplated thereby will not result in a
violation
thereof, or a default thereunder.
(e) No
Approvals. Neither Holder nor LFI is required to obtain the
approval, authorization, consent or any other order of any public
or
private entity, person, board or body in connection with the
transactions contemplated by the Holder Documents, except as set
forth
in Section 3.1(e) hereof.
(f) Financial
Statements. The unaudited financial statements and other
information of LFI, copies of which have been, or prior to Closing
will
have been, provided to ONVC, are true and correct in all
material
respects.
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(g) No
Material Adverse Change. From the date of the last financial
statements to the date hereof, there has not been, and through the
date
of Closing, there will not have been any change that would
materially
and adversely affect the financial position or results of operation
of
LFI, except for such changes that are a result of industry
changes
generally or general economic conditions, or their ability to
consummate the transactions contemplated hereby, or that should
be
disclosed to ONVC in order to make any statements or
information
furnished to ONVC, in light of the circumstances under which they
were
made, not misleading, which has not been, or prior to Closing, will
not
have been, disclosed in writing to ONVC.
(h) No
Undisclosed Liabilities. There is no account, note, lease, tax,
environmental liability, fine, penalty, civil or criminal
action,
filing, liability, obligation, lien, encumbrance, restriction or
other
duty affecting LFI or the LFI Interests (nor is there any
reasonable
basis, circumstance or fact that might give rise thereto),
whether
realized or contingent, pending or threatened, as of the date
hereof or
as
of the date of Closing, which has not been, or prior to
Closing,
will not have been, disclosed in writing to ONVC.
(i) No
Litigation. There is no action, suit, proceeding or investigation
at
law or in equity, before or by any court, public board or body,
realized or contingent, pending or threatened, known, against
or
affecting LFI or the LFI interests) (nor is there any reasonable
basis,
circumstance or fact therefore) as of the date hereof, or as of
the
date of Closing, which has not been, or prior to Closing, will not
have
been, disclosed in writing to ONVC.
(j) Ordinary
Course of Business. Since January 1, 2005, LFI has conducted
its business in the ordinary course of business consistent with
the
past practices of LFI.
(k) Brokers or
Finders. Neither Holder nor LFI or their officers or agents
have incurred any obligation or liability, contingent or otherwise,
for
brokerage or finders' fees or agents' commissions or other
similar
payment in connection with this Agreement, except Innovative
Travel
Acquisitions whose fees and expenses shall be paid directly by
Holder.
Holder will indemnify and hold ONVC harmless from any such
payment
alleged to be due by or through Holder or LFI as a result of the
action
of Holder or LFI or their officers or agents.
(l) Securities
Representations. Holder hereby represents and warrants to
Company as follows: (1) Holder is an "Accredited investor", as
such
term is defined in Rule 501(a) to the Securities Act of 1933,
as
amended (the "Securities Act"); (2) Holder's address as set forth
on
the Transfer Power is Holder's true and correct residence and
Holder
has no present intention of becoming a resident of any other state
or
jurisdiction; (3) the Note and the Conversion Shares, if converted,
are
being acquired solely for Holder's own account, for investment, and
are
not being purchased with a view to or for the resale,
distribution,
subdivision, or fractionalization thereof and Holder has no
present
plans to enter into any contract, undertaking, agreement, or
arrangement relating thereto; (4) Holder understands that neither
the
Note nor any Conversion Shares have been or will be registered
under
the Securities Act, that Holder has no rights to require that the
Note
or any Conversion Shares be registered under the Securities Act or
any
state securities or blue sky laws; that Holder may have to hold
the
Note or any Conversion Shares for a substantial period of time and
that
it may not be possible for Holder to liquidate Holder's investment
in
Company; and that in any event the Note and the Conversion Shares
may
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not be assigned, transferred, pledged, or otherwise sold or offered
for
sale except pursuant to an effective registration statement under
the
Securities Act or pursuant to an exemption from registration under
the
Securities Act, the availability of which must be established by
Holder
to the satisfaction of Company; and in replacement or exchange
therefore, are to bear a restrictive legend to this effect; (5)
Holder
is acquiring the Note without being furnished any offering
literature
or prospectus, but Holder has been granted, and is relying
upon,
Holder's personal discussions, investigations and due diligence
of
Company and its officers; (6) Holder has such knowledge and
experience
in business and financial matters that Holder is capable of
evaluating
the business and financial matters of Company and the risks and
merits
relating thereto; (7) that there has never been any
representation,
guarantee, or warranty made to Holder by any broker, Company,
its
agents or employees, or any other person, expressly or by
implication,
as to any gain or profit to be derived from, or the approximate
or
exact length of time that Holder may be required to remain an owner
of,
the Note or the Conversion Shares, or as to any other matter
not
expressly contained herein.
2.2
REPRESENTATIONS AND WARRANTIES OF ONVC
ONVC hereby represents and warrants to Holder as follows:
(a)
Authorization. ONVC is duly organized, validly existing, and in
good
standing under the laws of the State in which it was formed. ONVC
has
full right, power and authority to execute and deliver the ONVC
Documents (as defined below), to perform its obligations therein
and to
consummate all of the transactions contemplated thereby.
(b) Documents.
ONVC has, or before Closing will have, approved the sale of
the LFI Interests, this Acquisition Agreement and the
transactions
contemplated hereby, and approved, executed and delivered this
Acquisition Agreement and certain agreements, instruments to be
executed and delivered by ONVC in connection herewith
(collectively,
the "ONVC Documents") and each of the ONVC Documents, when executed
by
ONVC, shall be the legal valid and binding obligation of ONVC
in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting
creditors'
rights heretofore or hereafter enacted to the extent
constitutionally
applicable and subject to the exercise of judicial discretion
in
appropriate cases.
(c) No
Default. ONVC is not in violation of any provision of, or in
default
under, and the execution and delivery of the ONVC Documents,
the
performance of the obligations therein and the consummation of
the
transactions contemplated thereby will not result in a violation
of, or
default under, the any of the ONVC's articles of incorporation,
by-laws
or any indenture, mortgagee, deed of trust, indebtedness,
agreement,
judgment, decree, order, statute, rule or regulation to which ONVC
is a
party or by which ONVC or its property is subject or bound.
(d) No
Approvals. ONVC is not required to obtain the approval,
authorization, consent or any other order of any public or
private
entity, person, board or body in connection with the
transactions
contemplated by the ONVC Documents, except as set forth in
Section
3.2(a) hereof.
(e) Investment
Intent. ONVC is acquiring the LFI Interests for its own
account and not with a view to their distribution within the
meaning of
Section 2(11) of the Securities Act of 1933.
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(f) Brokers or
Finders. Neither ONVC nor its officers or agents have
incurred any obligation or liability, contingent or otherwise,
for
brokerage or finders' fees or agents' commissions or other
similar
payment in connection with this Agreement and ONVC will indemnify
and
hold Holder harmless from any such payment alleged to be due by
or
through ONVC as a result of the action of ONVC or its officers
or
agents.
3. COVENANTS PRIOR TO CLOSING
3.1 COVENANTS
OF HOLDER AND LFI
(a) Access and
Investigation. LFI will (1) afford ONVC and its
representatives full and free access, during normal business hours,
to
its personnel, properties (including subsurface testing),
contracts,
books and records, and other documents and data, (2) furnish ONVC
with
copies of all such contracts, books and records, and other
existing
documents and data as ONVC may reasonably request, and (3) furnish
ONVC
with such additional financial, operating, and other data and
information as ONVC may reasonably request.
(b) Due
Diligence. Each of Holder and LFI shall cooperate with ONVC in
the
conduct of its due diligence and shall furnish, at a minimum,
the
information, documents and other items set forth in Exhibit B
attached
hereto.
(c) Audit. LFI
acknowledges that ONVC, as a publicly traded company, will
need audited financial statements of LFI. ONVC, at its expense,
will
cause its accountants to conduct an audit of LFI and to issue
audited
financial statements as diligently possible. Holder and LFI (and
any
LFI subsid
